Judicial Reform
As
Taiwan headed forward into a new era,
it became apparent that the judicial system
was not changing rapidly enough to play
its proper role in a modern, democratic
society. The public desire for an independent,
fair, and effective judiciary was very
clear. Adhering to the spirit of the lawyer
role, the TBA did not shirk from its responsibility
to promote judicial reform. It established
a Judicial Reform Committee, and it also
established the Judicial Reform League
with the Taiwan Law Society and other
civil society groups in September 1990.
The first
task of the TBA in this area was to push
for amendment of the Law of Lawyers, which
was accomplished in 1992. The revised
law specified the mission of lawyers as
protecting human rights, realizing social
justice, and facilitating the democratic
rule of law. In addition, the changes
allowed lawyers’representatives to
take the majority of seats on the Ministry
of Justice Committee on the Discipline
of Lawyers. The rule restricting the number
of district courts with which a lawyer
may register was not deleted, but the
number was expanded from two to four.
In 1997, the TBA, jointly with the Judicial
Reform Foundation (JRF), again put forward
draft amendments to the Law of Lawyers,
this time covering issues such as the
abolishment of restrictions on lawyers’negative
capacity and the quota of the courts performing
business, whether the Bar Association
should be incorporated, and regulations
governing foreign lawyers.
Likewise,
in 1998 the TBA and the JRF also jointly
put forward drafts of two new laws, the
Law of Judges and the Law of Prosecutors.
These drafts called for a number of structural
reforms to the judicial system. First,
they emphasized that the recruitment of
judges and prosecutors should be diversified
and that, following the unified system
adopted by Japan, the examination for
judges and prosecutors and the Bar examination
should be combined into a single examination
for judicial personnel. The draft Law
on Judges also called for creating a system
of judicial clerks, stipulated that the
courts should establish a system of self-supervision
of judges’performance and personnel
arrangements, and laid out an improved
retirement system for judges. Furthermore,
it called for establishing a system whereby
lay persons could officially participate
in trials and offer consultation to judges,
and it explicitly conferred jurisdiction
over violations of the Constitution to
trial judges. These proposals have been
largely adopted by the Executive Yuan,
and the bill is currently pending before
the legislature. However, the rather unique
design of the government bodies in Taiwan
has kept most of the reforms from being
formally implemented. For example, the
merit rating that affects promotion of
judges maintains partially controlled
by the Examination Body, leaving the Judiciary
Body still limp on the essential fronts
like independence of judges and several
constitutional issues. The retirement
and pension system of the fudges is at
best equal to the normal public officials.
It is believed that a more thorough constitutional
reform is needed to achieve the goals
of genuine independence of the justice
system.
The
TBA draft Law on Prosecutors included,
first, specifying the duties of prosecutors;
second, improving the personnel system,
including specifying the method to select
the Prosecutor-General, establishing committees
within prosecutor offices to allocate
workload fairly and transparently, setting
a clear policy governing the assessment
and discipline of prosecutors (including
the provision that a prosecutor shall
not be dismissed or suspended from office
in the absence of such official disciplinary
action), stipulating that the prosecutor
will must be respected when being transferred
or assigned; and third, specifying the
method to dispatch investigative groups.
The Executive Yuan has decided not to
create a separate Law of Prosecutors,
but some of these proposals have been
added as a subchapter of the draft Law
on Judges.
Since
the judicial power derives from the people,
the judicial personnel should be under
public supervision. Therefore, in the
hope of encouraging excellent judges and
disciplining inferior ones, since 1992
the TBA has conducted assessments of judges.
In addition to reporting to the Judges
Assessment Committee of the Taiwan High
Court on cases of seriously incompetent
judges, the TBA has made public the results
of its periodic surveys of the best and
worst judges. In one instance, one of
the judges assessed as incompetent initiated
a private defamation suit against the
two TBA members who had published the
assessment.
Since
the early 1990s, the TBA has consistently
demanded that all judges should renounce
any political party affiliations, in order
to achieve neutrality. On April 29, 1997,
the TBA issued a declaration supporting
the constitutional amendment for the independent
determination of the budget of the judicial
branch, which amendment was passed in
May of that year. During this lobbying
process, the TBA pointed out the need
to expedite judicial reform and suggested
convening a National Judicial Reform Conference.
Later that year, the Board resolved to
participate officially in the “arch
for Renewal of Justice five hundred TBA
members took part, fully signifying the
TBA determination to fight for judicial
reform. The National Judicial Reform Conference
was convened in July 1999, and it reached
a number of important resolutions. Thereafter,
the TBA has continued to work to put the
resolutions into practice.
